Opinion 04-18

March 11, 2004

Digest:         A town justice should recuse in a matter in which one of the litigants is a potential competing business owner, where the justice had previously offered to recuse in matters involving this party.

Rule:            22 NYCRR 100.2(A); 100.3(E)(1).

Opinion:

         A town justice has been asked by counsel for the defendant to recuse in a matter wherein the defendant, who is the owner of a potentially competing business located five miles from the justice’s place of business, has been charged with violating zoning laws at his place of business.

         The defendant has appeared before the justice on a number of occasions from 1994 to present, as both a plaintiff and a defendant. At defendant’s initial appearance before the Court in 1994, the justice offered to recuse in the matter “at that point in time or at any point in the future.” From the initial 1994 matter until the initial appearance in the current matter, the defendant has declined to request the justice’s recusal. However, in the instant matter, just prior to the trial’s commencement, in a zoning matter related to the defendant’s business, the defendant retained legal counsel and moved for the justice’s recusal. That matter has been stayed pending the resolution of this issue.

         Although the justice has maintained that the court’s decision in the instant matter will be based on the facts of the case, we are of the opinion that it would be the better practice if the court were to disqualify itself under these circumstances and thus avoid any appearance of impropriety. Maintenance of the public’s confidence in the impartiality of the judiciary is a judicial imperative. 22 NYCRR 100.2(A). In assessing the potential impact on the public’s confidence, we note that the exercise of recusal is not limited to the specific instances delineated in subparagraphs (a) through (e) of section100.3(E)(1) of the Rules Governing Judicial Conduct, but should be exercised in any “proceeding in which the judge’s impartiality might be reasonably questioned . . . ” 22 NYCRR 100.3(E)(1).

         Here, the justice seems to recognize the potential for an actual or perceived conflict, by having voluntarily offered the defendant the opportunity to request the justice’s recusal at any time the defendant appears in his/her court. Although disqualification may not be mandatory under the circumstances presented, the justice, who has previously offered this defendant the opportunity to request recusal, should not rescind that offer at the moment the defendant actually seeks a disqualification. Accordingly, the justice should recuse in the instant matter in order to avoid the appearance of impropriety.